D, LAS nee S, LA also known as LAS v. D, JB also known as JBD

FCMC 11666/ 2016

[2018] HKFC 88

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11666 OF 2016

----------------------------

BETWEEN
	D, LAS nee S, LA also known as LAS	Petitioner
	and
	D, JB also known as JBD	Respondent

----------------------------

Coram: Her Honour Judge Sharon D. Melloy in Chambers

Date of parties written submissions: 4 May 2018

Date of Ruling: 1 June 2018

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RULING ON INDEMNITY COSTS

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Introduction

1.  On the 13 April 2018 the Respondent husband’s application for leave to appeal was listed for hearing with one hour reserved. This related to an order made by this court on the 14 December 2017 for an interim non molestation order against the husband with respect to both the wife and the two children of the family. The wife had significant concerns with respect to some of the husband’s behaviours and eventually she quite rightly sought the assistance of the court in that regard. An order was made and has since been extended (see also the court order dated the 13 April 2018). The husband issued an application on the 28 December 2017 seeking leave to appeal the order of the 14 December 2017. There has been no application in relation to the subsequent order.

2.  On the 13 April 2018 the husband withdrew the summons seeking leave to appeal. He accepted that he should pay costs to the wife on a party and party basis. He did not agree to pay the wife’s costs on an indemnity basis as requested. I therefore gave directions that both sides file short written submissions on the point and I further directed that the matter then be dealt with on paper only.

Background

3.  I do not intend to go into the background of the case in any detail, save that it is a highly toxic piece of litigation which to date has centred on the arrangements for the two children of the family.

The issue

4.  The only issue to be determined at this juncture however relates to the discreet issue of costs arising out of one application only. Should costs be awarded against the husband on a standard party and party basis or on an indemnity basis given, inter alia, that he withdrew his application for leave to appeal very late in the day?

Legal Principles

5.  Both parties have referred me to a number of different legal authorities. However, in the first instance I tend to agree with Ms Irving that it might be helpful to refer to my sister judge’s analysis of the correct approach in an unreported family case namely LYE and CWW and HWL, FCMC 14787 of 2002, 6 May 2005. In that case HH Judge Bebe Chu (as she then was) sets out the Legal Principles relating to indemnity costs as follows:

LEGAL PRINCIPLES

3.  According to Rule 3 of the Matrimonial Causes Rules, the Rules of the High Court (RHC) shall apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the Court of First Instance or in the District Court.

4.  Rule 91A of the Matrimonial Causes Rules provides that where the costs of an incidental to any matrimonial proceedings are directed to be taxed, R.H.C. Order 62 shall have effect in relation to the costs of proceedings in the Court of First Instance, and R.D.C. Order 62 shall have effect in relation to the costs of proceedings in the District Court.

5.  Order 62 Rule 28(3) in both R.D.C. and in R.H.C. provides that the Court in awarding costs payable to one party by another may in any case in which it thinks fit to do so order or direct that the costs shall be taxed on the common fund basis or on the indemnity basis.

6.  Any order for costs is in the discretion of the Court.  (see Headnote of Re Engindata Ltd (No. 2) 1993 1 All ER 232).

7.  Section 53 of District Court Ordinance Cap. 336 (equivalent to Section 52A of High Court Ordinance Cap. 4) provides that the Court shall have full power to determine by whom and to what extent the costs are to be paid.  See also Hong Kong Civil Procedure, 62/2/5:-

“The Court of Appeal in Choy Yee Chun (The Representative of the state of Chan Pui Yiu) v. Bond Star Development Ltd [1997] H.K.L.R.D. 1327, CA reviewed the cases and summarised the law as follows. A taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party’s cost on the indemnity basis. However, the circumstances in which an indemnity award might properly be made were not restricted to circumstances beyond the requirement that taxation on an indemnity basis must be “appropriate”. The principle for the award of an order of costs on an indemnity basis applied equally to those who not only instituted proceedings but who defended them. If a plaintiff had been forced to institute proceedings by the defendant whose conduct had been not only hostile in the normal litigious sense, but oppressive and with base ulterior motive, and if the pursuit of a defence constituted conduct which was part of an oppressive game plan, then invocation of the power to award costs on an indemnity basis might well be justified”.

HH Judge Chu continued

8.  I have been referred by the Petitioner’s solicitor, Mr. Ko, to the case of Re Tang Hong Yeun Andy HCB 19585 OF 2003 (at paragraph 18) quoting Choy Yee Chun (The Representative of the estate of Chan Pui Yiu) v Bond Star Development Ltd. [1997] H.K.L.R.D. 1327 CA, where it was held that the discretion was not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”.  See also Hong Kong Civil Procedure, 62/App/12.

9.  I have also been referred to the Judgment of the Court of Final Appeal in Town Planning Board v Society for Protection of the Harbour Limited.  FACV No. 14A of 2003, at paragraphs 12, 14, 15, 18 and 23 where the Court of Final Appeal has made the following comments:-

(a)  The Court has a broad discretion to determine how costs shall be paid and whether indemnity costs should be ordered (paragraph 12).

(b)  The successive party should show, in order to obtain an order for costs on an indemnity basis, that the case has some “special or unusual feature” (paragraph 15).

(c)  In relation to the award of costs generally, it has been accepted, as Chu J pointed out, that while

“the ground [upon which costs are awarded] must be connected with the case. This may extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further”.

There is no reason why this statement does not apply with equal force to the exercise of the discretion to award indemnity costs (paragraph 18).

(d)  Other factors, such as the reasonableness of the conduct of the parties, may need to be taken into account (paragraph 23).

6.  Ms Irving for the wife also refers to Town Planning Board v Society for Protection of the Harbour Ltd No 2 (2004) 7 HKCFAR 114, which supports the general proposition that indemnity costs orders are based “on a wide range of factors and circumstances” and that an order must be “appropriate”. In particular, she said as follows in her written submission:

16.  The courts have rejected the proposition that an award of indemnity costs will only be made where a case has been brought with an ulterior motive or for an improper purpose or where there is some deception or underhand conduct on the part of the losing party. (Macmillan v. Bishopsgate Investment Trust Ltd, unreported, judgment delivered 10 December 1993 (Millett J); Disney v. Plummer, unreported, judgement delivered 16 November 1987 (English Court of Appeal)).  These decisions and the reasoning on which they were based have been endorsed by the Hong Kong Court of Appeal (Sung Foo Kee Ltd v. Pak Lik Co. (A Firm) at 575E-576F, per Godfrey JA; see also Choy Yee Chun v. Bond Star Development [1997] HKLRD 1327 at 1334G-1335I, per Stock J.)

17.  In these and other cases, courts have emphasised the undesirability of attempting to define the circumstances in which orders for indemnity costs are to be made.  It has been said that

“the discretion is not to be fettered or circumscribed beyond he requirement that taxation on an indemnity basis must be ‘appropriate’.”

(Macmillan v. Bishopsgate Investment,per Millett J; Sung Foo Kee Ltd v. Pak Lik Co. (A Firm) at 575E-576F, per Godfrey JA; See also Choy Yee Chun v. Bond Star Development Ltd at 1334G-1335I, per Stock J).

Discussion

7.  The wife argues inter alia that

27.  In this case, the Father’s conduct is absolutely appalling.  He has no regard for the costs he causes the Mother, then has his Counsel complain about the level of her costs.  He had known about the date of the leave to appeal application, his application, for two months, and he must have, or should have, had this in mind when he decided to change counsel and fail to prepare for the case.

28.  The distinct flavour is that not only does he not care what difficulties and costs he causes the Mother, he is actually rather pleased to do so, as part of his determined plan, seen throughout his litigation, of making her life as hard as he possibly can.

29.  The decision to pursue this application at all made no sense. He was seeking leave to appeal an interim Order, having agreed that the application would be adjourned to a fact finding hearing when he interim order would have been either replaced with a substantive order, or discharged.  The fact he was willing to do this indicated that he did not consider the interim order a matter of much gravity, or he would have sought an early date to have it discharged.  There is no point in seeking leave to appeal an interim order then being perfectly content for it to be in place for longer than it might have to be, rather than it being dealt with urgently.

8.  The husband for his part maintains that the late withdrawal of his application for leave to appeal does not put this application in the category of cases where an indemnity costs order might be appropriate. Ms Allison says on the father’s behalf that

19.  Unfortunately, the Interim Order has now been in place for a substantially longer period of time than was originally envisaged, and the substantive hearing of the DVO Summons has been delayed until October 2018. The Husband’s reason for withdrawing his Leave to Appeal Summons was due to the practical consideration that he did not want to further delay these proceedings.  There was a real concern that there could be further delays or adjournments in the Fact Finding Hearing and the DVO Summons, if judgment for the Leave to Appeal Summons was not handed down before October 2018.

20.  Bearing in mind the principles that parents should not be discouraged from taking a genuine interest in the debate regarding their children and costs orders are likely to exacerbate rather than calm down existing tensions, as reflected in the general practice of having no order as to costs in applications involving children, it is submitted that the Husband’s approach in offering the Wife’s costs on a party and party basis is reasonable in all of the circumstances.

Decision

9.  As things stand there has been no trial and no findings of fact made with respect to many aspects of this litigation. If at the end of the day, the wife is found to be correct in what she says then there may be a case for an order for indemnity costs generally. This is likely to include arguments with respect to the husband’s litigation conduct. I accept that those arguments may be advanced notwithstanding the fact that this is a children’s related matter.

10.  However, having said that, I also accept that I am currently concerned with one discreet point only arising out of the leave to appeal application and not the litigation generally.

11.  Although I accept the wife’s point that the court’s discretion is wide and that an order for indemnity costs is not limited to cases where a) there been either an ulterior motive and/or b) an improper purpose and/or c) oppressive conduct and/or d) an abuse of process, I am nevertheless of the view that it would not be appropriate to award indemnity costs in this particular instance.

12.  In the final analysis the husband withdrew his application for leave to appeal on the same day as the hearing. He should, of course, have done this much earlier and I accept that this action caused the wife to incur unnecessary legal costs. But, this is not the sort of litigation conduct that would normally be regarded as being so seriously deficient as to attract an indemnity costs order.     

Conclusion 

13.  In such circumstances the husband shall pay the wife’s costs of and occasioned by the withdrawal of the summons filed on the 28 December 2017 on a party and party basis to be taxed if not agreed. There shall be no order as to costs with respect to this application. There shall be certificate for counsel.

  

  

	(Sharon D MELLOY)
	District Judge

Ms Frances Irving instructed by Withers for the Petitioner

Ms Sasha Allison, instructed by Ho & Ip for the Respondent

  

FCMC 11666/ 2016

[2018] HKFC 74

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11666 OF 2016

----------------------------

BETWEEN
	D, LAS nee S, LA	Petitioner
	also known as LAS
	and
	D, JB also known as JBD	Respondent

----------------------------

Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 17 April 2018

Date of Judgment: 11 May 2018

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J U D G M E N T
(Interim maintenance)

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Introduction

1.  This is an application by a Petitioner mother for interim maintenance for the two children of the family, both boys now aged 8 and 10 years old respectively, pursuant to section 5 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO).

2.  This is an extraordinarily high conflict case which centres on the appropriate arrangements for the two children of the family, amid very serious allegations made by the mother against the father, which include inter alia concerns around drug addiction, inappropriate behaviours by the father otherwise including allegations that he has tampered with evidence, that he has engaged in stalking like behaviours and that he has lied on oath. I do not intend to comment on these allegations in this judgment. It is of note however that there is a Fact Finding hearing pending and that the mother has issued proceedings against the father for contempt.

3.  In so far as this application is concerned, the court is asked to determine how much the father should pay to the mother as interim maintenance for the two children of the family.  The mother asks that the father contribute towards 50% of their expenses and seeks an order that he pay the sum of HK$73,541.58 per month (or say HK$73,600) for both children.  At the very least she argues that the father should pay not less than HK$48,000 per month or HK$24,000 per month per child.  The father for his part says that in general he should only pay 40% of the children’s actual expenses as the mother earns more than him. He says that this is a suitable pro-rated amount.  In his affidavit dated the 14 March 2018 he offers HK$37,956 per month for both children – (or say HK$38,000 per month) i.e. HK$19,000 per month per child.  The mother also asks that any sum be backdated. Initially she asked for HK$459,219.58 being her estimated outstanding expenses as at March 2017 (see the letter from the mother’s solicitors dated the 29 March 2017).   

Background 

4.  The parties married on the XX August 2005 and the divorce petition was issued by the mother on the 12 September 2016 based on the father’s unreasonable behaviour.  The decree nisi was granted on the 5 April 2017.

5.  The mother issued her summons for interim financial support on the 9 January 2018 in the following terms:

1.   The Respondent [father] do forthwith pay the Petitioner [mother] the sum of HK$288,000 being the outstanding interim maintenance payments for the two children of the family, namely, D, J B-Junior, a boy, born in Hong Kong on XX September 2007 and D V S, a boy, born in Hong Kong on XX August 2009 (“the Children”) from August 2017 to January 2018 in the sum of HK$48,000 per month;

2.   The Respondent do pay the Petitioner interim maintenance payments for the Children at a monthly sum of not less than HK$48,000 or such other sum as this Honourable Court deems fit from 1^st February 2018 until further Order of the Court; and

3.   The Respondent do pay the Petitioner’s costs of this application.

6.  Prior to this, on the 29 August 2017, the father had also issued a summons seeking litigation funding from the mother in the sum of HK$350,000 per month. The original intention had been to deal with both of these applications together. However, this proved not to be possible, given the fact that the father had not complied with orders in relation to specific discovery. There was also an issue with respect to the late filing of a submission by the father and the inclusion of evidence not previously before the court. Notwithstanding this, and in order not to lose the court date completely, the parties agreed to proceed on the basis of the evidence that has been filed in court to date.

7.  The parties are both American. The mother, who is 52, is the Asian President and Senior Partner of an American Communications and PR firm. She is on expatriate terms. The father, who has just turned 48, is a Director of a company that provides materials to the shipping industry on a global basis. The father appears to still be employed out of Hong Kong, despite originally relocating back to Houston, Texas. He is employed on local Hong Kong terms.    

8.  It does not appear to be disputed that the parties enjoyed a high standard of living whilst living together in Hong Kong. The family lived in a high end property on Hong Kong Island and the boys attended good international schools. The boys have also enjoyed a wide range of Extra Curricular Activities and they receive regular and ongoing additional tuition. There are also two domestic helpers and one driver to assist the family. Historically the parties travelled both locally and back to the States on a regular basis.  

9.  It is the mother’s case, and this does not appear to be disputed, that save for the sum of HK$192,000 deposited into the mother’s account on the 29 June 2017, the father has not contributed anything towards the financial support of the boys since December 2016. The father for his part points to the additional cost to him of access, including the twice weekly urine tests and the cost of supervision, plus the cost of booking suitable hotel rooms etc.

10.  It is of note that during a court hearing on the 6 April 2017 that the father offered, through his then counsel, to pay the mother HK$48,000 per month for the financial support of the boys on an interim basis.  Save for the HK$192,000 referred to above, this sum has not been forthcoming.

The law

Interim maintenance

11.  The law is well known and not in dispute. Section 5 of the Matrimonial Proceedings and Property Ordinance, Cap 192 states that maintenance for children can be ordered either before or after the granting of the decree for divorce. In the event then that an application is made for interim maintenance, then the court shall adopt the same approach as when considering an application for maintenance pending suit under section 3 of the same ordinance. Thus the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means and their ability to pay maintenance for their children will only be examined in full at a later date at an ancillary relief trial, if there is no agreement in the meantime. If there is found to be any overpayment or underpayment, then that can normally be rectified at that time.   

12.  In addition, reference can be made inter alia to the Court of Appeal decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit/interim maintenance applications:

a.   The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b.   A very important factor in determining fairness is the marital standard of living.

c.   In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long term expenditure, more aptly to be considered on a final hearing.

d.   Where the affidavit or form E disclosure by the payer is obviously deficient, the Court should not hesitate to make robust assumptions about his ability to pay.  The Court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such situation, the Court should err in favour of the payee.

13.  In this case the court is particularly concerned with the marital standard of living enjoyed by the parties prior to separation and the apparent deficiencies in the father’s disclosure to date.

Budgets

14.  It is of note that the mother’s budget for the interim financial support of the boys originated in a letter sent by her legal team to the father’s solicitors dated the 29 March 2017. The mother seeks to rely on this in preference to the budget in her original Form E. In that letter she sets out her expenses for the boys as follows:

Expenses	Monthly cost	Your client’s 50% share
Accommodation	HK$13,779	HK$6,889.50
Tutoring (including Chinese, Maths, Chess, Guitar and Soccer)	HK$37,883	HK$18,941.50
School books and stationary	HK$600	HK$300
Clothes and school uniform	HK$6,000	HK$3,000
Therapy	HK$14,200	HK$7,100
Food (including school lunches)	HK$15,000	HK$7,500
Helpers and driver	HK$30,958	HK$15,479
Petrol	HK$5,000	HK$2,500
Transportation costs (including Van’s bus fee)	HK$1,500	HK$750
Car Insurance/Registration	HK$1,500	HK$750
Medical Insurance Premiums	HK$1,731.91	HK$865.95
Medical Costs not covered by insurance	HK$2,131.25	HK$1,065.62
Vitamins	HK$1,000	HK$500
Air Purifier	HK$800	HK$400
Holidays	H$7,000	HK$3,500
Children’s entertainment	HK$6,000	HK$3,000
Miscellaneous – one-off costs e.g. renewal of passports, musical instruments	HK$2,000	HK$1,000
Total	HK$147,83.16	HK$73,541.58

15.  The father responded to this claim in his 12th affidavit dated the 14 March 2018. The mother then countered in her affidavit in reply dated the 12 April 2018. It is only at this late stage that she sought to update some of these figures.

16.  I should like to add that the reason in part why Form E disclosure is generally to be preferred, is because the court will often treat “General” expenses differently to “Personal” expenses or to the children’s own expenses. Muddling these items up can unnecessarily cause confusion.

Each party’s income

17.  There was also some difficulty is determining each party’s actual income. Ms Irving attempted to clarify things a little in a schedule prepared by her, which became exhibit P-1. The difficulty however, is that this relied upon disclosure provided by the father at the door of the court and which was not in his affidavit evidence. According to the original evidence filed in court, the father earns in the region of HK$303,750 per month inclusive of a bonus equivalent to HK$60,000 per month. There is much mystery surrounding the father’s bonuses and updated information is expected to be filed in that respect very shortly. It is clear however that this is his GROSS income.

18.  In contrast reference was made to the mother’s net income. This was also difficult to determine. According to the mother’s Form E she has a pre tax income of HK$418,275 per month and her average income after all the deductions and other allowances were taken into account, was HK$148,693 per month. This is set out as follows:

My present basic / average* income per month (pre-tax) is: -

HK$418,275 (US$53,625*7.8)

In addition, I receive: -

Overtime (average per month-based on the last 12 months)	$0
Double pay (average per month)	$0
Bonus (average per month)	Provided on an annual, discretionary basis and varies considerably each year depending on company performance
Commission (average per month- based on the last 12 months)	$0
Tips (average per month-based on the last 12 months)	$0
Housing allowance (directly paid by employer) (average per month)	$118,483 (pre-US tax)
Travel / Transport * allowance (directly paid by employer) (average per month)	HK$7,410 (US$950*7.8) (pre-US tax)
Education allowance (average per month)	HK$22,800 (US$2,923.08/month and US$35,076.90/annum) ·V’s tuition fee ($95,050 per semester *2) ·B’s tuition fee (HK$8,350 x 10 months)
Entertainment allowance (average per month)	$0
Other allowances (specify) (average per month)	$0
The total average per month	HK$148,693

19.  Unfortunately, this is different in part to exhibit P-1 which summarizes the up to date situation thus:

	US Per annum	HK per month
Wife’s basic salary	US$643,500 =HK$5,006,430	HK$417,202
Average bonus	US$170,000 =HK$1,322,600	HK$110,216
Car allowance	US$11,400 =HK$88,920	HK$7,362
Total gross		HK$534,780
Less Tax		(HK$290,000)
Rental Contribution		(HK$14,000)
Total Net		HK$230,780

20.  In court reference was also made to the mother’s “Earnings Statements”. These showed that she receives net a figure of between US$6,000 – US$7,000 every two weeks (or say between HK$46,800 – HK$54,600 x 21 = HK$982,000 – HK$1,146,600 divided by 12 = 81,834 - 95,550 per month). In addition, she receives the rental allowance referred to above and the school fees for the children are covered in full. There is also a car allowance that is included in her salary and an annual bonus which varies. The estimated bonus had however been included in Ms Irving’s figures. There is, however, no dispute that this is her NET income. 

21.  The difficulty that then presents itself is whether or not the mother is infact in a better financial situation than the father? On an interim basis this is difficult to determine absolutely especially given the lack of conclusive evidence about the father’s bonus situation. In broad terms though both parties earn a significant income and both should be able to make a full contribution towards their children’s monthly expenses. On an interim basis therefore it seems to me that this is a case for a 50:50 division of the children’s expenses, including their share of the general expenses. 

How much maintenance should the father pay to the mother as interim maintenance for the boys?

The reasonable needs of the boys and the father’s ability to pay

The reasonable needs of the boys

22.  I have been asked to rely on the mother’s up dated figures in her last affidavit, which in turn are originally based on her budget as set out in the letter of the 29 March 2017. However, it seems to me that it would be helpful if these could be superimposed, as far as that is possible, onto a Form E structure as follows:

Part 4 Current Monthly Expenses

4.1    General

Item	Amount
Rent	14,000 (rounded up)
Mortgage instalments	Not included
Utilities (electricity, gas, rates, telephone & water)	Not included
Management fees	0
Food	15,000.00
Household expenses	Not included
Car expenses Petrol Car insurance/registration Other costs HK$50,212.52	0 5,000 1,330 (updated and rounded up) ?
Insurance premia	0
Domestic helper(s) And driver	32,000 (updated in court)
Other	0
Total monthly household expenses	HK$67,330

23.  I accept that the mother needs considerable domestic support given the nature of her job and that this is in keeping with the standard of living enjoyed by the parties during the marriage i.e. that they had two helpers and a driver. I accept that she needs this level of support because of the boys. Thus it seems to me that it would be more appropriate to include the domestic helpers and driver under the children’s schedule of expenses.

24.  The mother argues that the estimate for food is entirely an estimate for the boys, likewise, the estimate for petrol and other car expenses. This is not accepted. Whilst it may be true that the mother eats breakfast and lunch out, it would be quite extraordinary in the circumstances if she was not at home with the boys most evenings and if some of these expense was not attributable to her. Thus 50% of these costs shall be attributable to the mother. Of the remaining 50% the parties shall divide this equally.

25.  In so far as the rent component is concerned, the mother asks that the father be responsible for the whole of the children’s share as she is providing the lion’s share of the rental through her rental allowance. This is similarly not accepted. The mother shall be responsible for 50% of the HK$14,000 and the remaining 50% shall be divided between the parties equally.

26.  Thus the father shall contribute HK$8,832.50 towards the general household expenses for and behalf of the boys made up as follows:

4.1    General

Item	Amount
Rent	3,500
Mortgage instalments	Not included
Utilities (electricity, gas, rates, telephone & water)	Not included
Management fees	0
Food	3,750
Household expenses	Not included
Car expenses Petrol Car insurance/registration Other costs HK$50,212.52	0 1,250 332.50 ?
Insurance premia	0
Domestic helper(s) And driver	See below
Other	0
Total monthly household expenses	HK$8,832.50

Children’s direct expenses

27.  The following then is an updated schedule of the children’s expenses, including updated figures provided in the mother’s last affidavit and submissions made in court, which in turn were based on the evidence filed to date. 

Item	Amount
School fees	Provided by the wife’s employer
Extra tuition fees and Extra Curricular Activities	37,050
School books and stationery	1,000
Transport to school (including school bus)and related expenses	5,125 (rounded up)
Medical - B Dental - V	2,440 7,400
Entertainment / presents	6,000
Holidays	7,000
Clothing / Shoes including school uniform	6,000
Insurance premia Medical	2,365 (rounded up)
Lunches and pocket money (in food)	0
Other Transport (included above)	0
Domestic helpers and driver	32,000
Therapy	14,200
Vitamins	1,000
Air Purifier	800
Miscellaneous items	2,000
Total monthly expenses for children	HK$124,380

28.  Of those expenses I will take out of the equation the reference to entertainment/presents and holidays. Each party shall be responsible for their own presents for the boys and for other entertainment costs when they are with them. Notionally each shall be responsible for the cost of holidaying with the boys.  

29.  The cost of tuition and Extra Curricular Activities seems a little on the high side to me – even given the fact that the parties have historically enjoyed a high standard of living. The father agrees to pay half of the extra tuition, subject to the production of receipts. He does not agree to pay half of the ECA’s as he says that he has not been consulted on them. Given the extremely high level of conflict here I do not intend to add to the possible areas for dispute by agreeing to the production of receipts as a basis for payment. I will allow the sum of HK$30,000 per month. It is for the mother to budget within this sum.

30.  In so far as therapy is concerned the mother acknowledges that B is currently having therapy once every two weeks at a cost of HK$2,000 per session. Although V is not currently receiving therapy it is anticipated that that will resume shortly. Thus I will allow HK$8,000 for therapy – two sessions for each child per month.     

31.  In total then I accept that the direct expenses for the boys, inclusive of the domestic helpers and the driver amounts to approximately HK$98,130 per month as follows:

Item	Amount
School fees	Provided by the mother’s employer
Extra tuition fees and Extra Curricular Activities	30,000
School books and stationery	1,000
Transport to school (including school bus)and related expenses	5,125
Medical - B Dental - V	2,440 7,400
Entertainment / presents	N/A
Holidays	N/A
Clothing / Shoes including school uniform	6,000
Insurance premia Medical	2,365 (rounded up)
Lunches and pocket money (in food)	0
Other Transport (included above)	0
Domestic helpers and driver	32,000
Therapy	8,000
Vitamins	1,000
Air Purifier	800
Miscellaneous items	2,000
Total monthly expenses for children	HK$98,130

32.  The father shall be responsible for 50% of those expenses or HK$49,065 per month, plus his share of the general expenses in the sum of HK$8,832.50 per month totalling HK$57,897.50 rounded up to say HK$58,000 per month or HK$29,000 per child per month.

Backdating

33.  The mother originally asked that the sum of HK$48,000 be backdated for the period from August 2017 – January 2018 and for this order to take effect from February 2018. For reasons best known to himself the father has not contributed towards the children’s maintenance at all save for the payment of the HK$192,000 referred to above. This is not acceptable. This order shall be backdated to August 2017. Any arguments with respect to the level of payment before then can be revisited at a later date. Thus the father shall pay the mother HK$580,000 being maintenance for the period from August 2017 – May 2018 (10 months in total).          

Costs

34.  The mother has been largely successful with respect to this application. She was willing to accept a sum of not less than HK$48,000 per month for both boys. Further she has had no option but to issue the summons, as it was quite clear that the father was not prepared to make any voluntary contribution towards the boy’s expenses. Consequently, I shall make an order nisi to be made absolute in 28 days’ time, that the father do pay the mother’s costs of and arising out of her summons dated the 9 January 2018, such sum to be paid on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

Order

35.  To conclude, I shall make an order as follows:

1)   The Respondent father shall pay interim maintenance to the Petitioner mother for the two children of the family in the sum of HK$29,000 per month per child, the first payment to be made on the 1 June 2018 and thereafter such sum to be paid on the 1^st day of each succeeding month until further order.

2)   This sum shall be backdated to the 1 August 2017 and the Respondent shall pay the additional amount of HK$580,000 to the Petitioner within the next 28 days.    

3)   There shall be an order nisi to be made absolute in 28 day’s time that the Respondent do pay the Petitioner’s costs on a party and party basis to be taxed if not agreed. There shall be certificate for counsel.

  

  

	(Sharon D. MELLOY)
	District Judge

  

Ms Francis Irving instructed by Withers for the Petitioner

Ms Sasha Allison instructed by Ho & Ip for the Respondent